The Gillard government’s proposed whistleblower protection laws are weak, ill-defined and will need to be amended if government agencies are to become more transparent and accountable, according to whistleblowing experts.
Attorney-General Mark Dreyfus introduced the long-awaited Public Interest Disclosure Bill into the lower house last week. While applauding the government’s commitment to make public interest whistleblowing legal for the first time, Dr A.J Brown, professor of public policy and law at Griffith University, says there are “serious problems” with the legislation that must be fixed.
“Currently, I wouldn’t be supporting the bill,” Brown, who is also a director of Transparency International Australia, told Crikey. “There are too many things wrong with it in its current form to achieve its intended objectives.”
Brown’s biggest beef is that politicians — including the Prime Minister, ministers and the Speaker of the House of Reps — are not counted as “public officials” under the bill despite the power they wield. It means public servants who blow the whistle on wrongdoing by politicians, including concerns about corruption or bribery, would not be protected. Disclosures about senior public servants or contractors would be, along with employees working in statutory authorities (such as the Australian Competition and Consumer Commission) or the Australian Defence Force.
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Brown’s second major concern is the sweeping exemption for disclosures about intelligence agencies. The bill states public interest disclosures to third parties, such as journalists, must not consist of, or include, intelligence information or relate to an intelligence agency. That means, for example, a public servant aware of bribery in a tender for IT services at ASIO would not be able to go public with their concerns. Neither would someone concerned about bullying, s-xual harrassment or dodgy procurement practices at an intelligence agency.
“That’s just wrong,” Brown said. “The coverage of intelligence agencies and information is too broad and would result in quite serious misconduct, which doesn’t relate to sensitive information, not being disclosed.”
Dr Suelette Dreyfus, a research fellow at the University of Melbourne, agrees the “almost complete carve out” of intelligence information is a major flaw in the bill.
“Last time I checked you don’t need to be an angel to get a job at ASIO,” said Dreyfus, principal researcher of the World Online Whistleblowing Survey. An Australian version of WikiLeak’s “collateral damage” video — which showed US troops in an Apache helicopter killing innocent civilians — would not count as a public interest disclosure, for example.
Dreyfus says the government’s proposed law, while welcome, is weaker than the one drafted by independent MP Andrew Wilkie and the one passed by the ACT Parliament last year. “This is a start — it’s the the first base of the Lego set,” she said of Labor’s bill.
Under the government’s proposed law, “disclosable conduct” would include the waste of public money, dangers to the environment, an “abuse of public trust” or corruption. If a public servant is concerned about such conduct they are required to first raise the matter internally — either to the agency concerned or the Commonwealth Ombudsman. The only exception is the disclosure of information relating to “a substantial and imminent danger to health and safety”.
“If Labor gets this right it will leave an admirable legacy for Mark Dreyfus and the parliament even if nothing else gets passed by then.”
If the internal disclosure is not “adequately dealt with” they can then take the information to the media, as long as it is “not, on balance, contrary to the public interest”.
Although they say this broad framework is sound, whistleblowing experts fear seemingly innocuous technicalities could make it unworkable in practice. First, the “imminent danger to health and safety” test for external disclosures is extremely high and doesn’t take into account circumstances where it’s not safe or feasible raise concerns internally. For example, Allan Kessing’s 2007 leaked reports on airport security breaches revealed a substantial, but not “imminent”, threat to health and safety.
The need for investigations to be “adequately dealt with” is also a high bar. According to Brown, who helped draft Wilkie’s bill last year, the test should be that the public servant believes, on reasonable grounds, the investigation has not been adequate.
Peter Roberts, an expert on public sector whistleblowing at Charles Sturt University, is concerned by vague provisions in the bill — particularly the fact an internal response is only inadequate if it hasn’t been completed in “a reasonable period”.
“That reasonable period needs to be specified otherwise there is no mechanism for the whistleblower to determine whether it is safe to make an external disclosure,” Roberts said. “The overall effect of these requirements would be, at the very least, make a whistleblower contemplating an external disclosure very cautious indeed.”
Suelette Dreyfus says whistleblower protection laws need to be extremely specific to be effective — otherwise public servants will not risk the potential jail terms or loss of employment that can come from unapproved disclosures. “Our research clearly shows whistleblowers are far less likely to report evidence of wrongdoing if they feel they’re not on safe legal ground,” she said.
Although the experts who spoke to Crikey all have misgivings about the legislation in its current form, none doubt the sincerity or expertise of Mark Dreyfus (who led the 2009 parliamentary inquiry into whistleblowing). The AG has said he’s open to discussion about amendments, and has seven weeks until Parliament next sits. The House Standing Committee on Social Policy and Legal Affairs will hold an inquiry into the laws; submissions are also open for a concurrent Senate inquiry.
ASIO and other agencies will be lobbying hard to keep existing restrictions in place. Meanwhile, The Greens and Wilkie will be pushing for greater protections.
“There is always serious wrongdoing peppered throughout governments over time,” Melbourne University’s Dreyfus said. “Good whistleblowing legislation ensures that is caught before it becomes a catastrophe … This government has six months left [until an election]. If Labor gets this right it will leave an admirable legacy for Mark Dreyfus and the Parliament even if nothing else gets passed by then.”